decision no. 29714

STATE OF WISCONSIN

BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION

In the Matter of the Petition of

CITY OF GREEN BAY

Involving Certain Employes of

CITY OF GREEN BAY

Case 286No. 56751ME-956

Decision No. 29714

Appearances:

Mr. James M. Kalny, City/County Human Resources Director, 305 East Walnut Street,Room 620, Green Bay, Wisconsin, 54301, appearing on behalf of the City of Green Bay.

Parins Law Firm, S.C., by Mr. Thomas J. Parins, 125 South Jefferson Street, Suite 102,Green Bay, Wisconsin, 54305, appearing on behalf of the Green Bay Police Bargaining Unit.

Mr. Robert Baxter, Staff Representative, 2065 East Baraboo Circle, DePere, Wisconsin54115, appearing on behalf of Wisconsin Council 40, AFSCME, AFL-CIO.

FINDINGS OF FACT, CONCLUSIONS OF LAWAND ORDER CLARIFYING BARGAINING UNIT

On August 20, 1998, the City of Green Bay filed a petition with the WisconsinEmployment Relations Commission seeking the clarification of a bargaining unit comprised ofcertain employes represented by Bay Area Municipal Employees Union Local 1889,AFSCME, AFL-CIO, by including therein the newly-created, but not yet filled, position ofPC/Network Technician.

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AFSCME Local 1889 takes no position as to the City’s petition. The Green Bay PoliceBargaining Union opposes the City’s petition by contending that the PC/Network Technicianposition should be placed within its bargaining unit which consists of sworn police officersemployed by the City.

Hearing was held in Green Bay, Wisconsin, on December 10, 1998, before ExaminerAmedeo Greco, a member of the Commission’s staff. AFSCME Local 1889 elected not toparticipate in the hearing or to file a post-hearing brief. The City and the Police BargainingUnion filed briefs and reply briefs that were received by March 30, 1999.

On July 30, 1999, Examiner Daniel J. Nielsen issued Findings of Fact, Conclusions ofLaw and Order in a complaint case involving the City and the Police Bargaining Unit. Nopetition for review was filed and the Examiner’s decision became the Commission’s decisionon August 20, 1999 by operation of Sec. 111.07(5), Stats.

The Commission, having considered the matter and being fully advised in the premises,makes the following

FINDINGS OF FACT

1. Green Bay Police Bargaining Union, herein the Union, is a labor organizationwith its principal offices at 125 South Jefferson Street, Green Bay, Wisconsin, 54305.

2. Bay Area Municipal Employees Union Local 1889, AFSCME, AFL-CIO,herein AFSCME, is a labor organization with its principal offices at 2065 East Baraboo Circle,DePere, Wisconsin, 54115.

3. The City of Green Bay, herein the City, is a municipal employer with itsprincipal offices at 100 North Jefferson Street, Green Bay, Wisconsin, 54301.

4. The Union for some time has represented certain employes in the City’s PoliceDepartment. The Union and the City are parties to a collective bargaining agreement thatstates, inter alia:

ARTICLE 1RECOGNITION/MANAGEMENT RIGHTS

1.01 UNIT. The City agrees to recognize the Bargaining Unit as thebargaining agent for all full-time personnel of the Police Department havingpowers of arrest employed by the City, excluding the rank of Chief, Assistant

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Chief, Captain and Lieutenant in the matter of wages, hours, and workingconditions. Prior to any negotiations, the City shall be furnished with a list of themembership of the Bargaining Unit.

1.02 UNIT JOB DUTIES. Nonsupervisory job duties shall be assigned onlyto members of the Bargaining Unit. Ranks excluded from the Bargaining Unitare so excluded because the primary nature of their positions is to supervisepersonnel of the department, and accordingly they shall not be assigned toperform nonsupervisory duties as part of their normal and usual job duties;provided that this restriction shall in no way restrict such personnel in taking anyand all police action, or performing police duties and functions in relation tosituations, events or circumstances encountered or observed by such officers inthe course of the performance of their supervisory duties (for example, asupervisor would not work radar or patrol for traffic violators, but would beexpected to apprehend or arrest traffic violators who are observed by thesupervisor while performing the duties of supervision of personnel).

1.03 MANAGEMENT RIGHTS. The Union recognizes the prerogative of theCity, subject to its duties to collectively bargain, to operate and manage its affairsin all respects in accordance with its responsibilities, and the powers and authoritywhich the City has not abridged, delegated or modified by this Agreement, areretained by the City, including the power of establishing policy to hire allemployees, to determine qualifications and conditions of continued employment,to dismiss, demote, and discipline for just cause, to determine reasonableschedules of work, to establish the methods and processes by which such work isperformed. The City further has the right to establish reasonable work rules, todelete positions from the Table of Organization due to lack of work, lack offunds, or any other legitimate reasons, to determine the kinds and amounts ofservices to be performed as pertains to City government and the number andkinds of classifications to perform such services, to change existing methods orfacilities, and to determine the methods, means and personnel by which Cityoperations are to be conducted. The City agrees that it may not exercise theabove rights, prerogatives, powers or authority in any manner which alters,changes or modifies any aspect of the wages, hours or conditions of employmentof the Bargaining Unit, or the terms of this agreement as administered, withoutfirst collectively bargaining the same or the effect thereof.

5. AFSCME for some time has represented certain City employes. AFSCME andthe City are parties to a collective bargaining agreement that states, inter alia:

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ARTICLE 1RECOGNITION AND UNITS OF REPRESENTATION

(A) The Employer recognizes the Union as the exclusive representative forthe purposes of conferences and negotiations with the Employer, or its lawfullyauthorized representatives, on questions of wages, hours, and conditions ofemployment for the Unit of Representation consisting of all employees of theCity of Green Bay employed as follows:

(1) All regular full-time and part-time employees of the Cityof Green Bay employed in the City Hall and associated departments,Parking Utility and Transit Department, but excluding registered nurses,sanitarians, engineers, transit drivers, transit mechanics, departmentheads, elected and appointed officials, supervisors, confidentialemployees and all other employees of the Municipal Employer.

. . .

6. Ron Shaha, a sworn police officer, occupied the position of Specialist II withinthe City of Green Bay Police Department for about three years before he retired in March,1998, during which time he was in the collective bargaining unit represented by the Union.His job description stated:

GREEN BAY POLICE DEPARTMENTCommunications Division

I. TITLE

Specialist, Technical Coordinator for the Communication Division

II. REPORTING RELATIONSHIP

The Communication Specialist will be directly responsible to theDirector of the Communications Division and, through the chain ofcommand, to the Deputy Chief of Administration.

III. BASIC FUNCTIONS

A. To report to the Director of Communications in the matters ofsupervision and discipline of Communications’ personnel as itrelates to Department policies and procedures.

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B. To insure all communication and electronic systems are properlymaintained so that they are operational for normal and emergencyuse at all times to include but not limited to radio, computer,telephones and all supporting equipment.

C. To be the technical coordinator and act as the project manager onthe various requests that come to the division for automation.

D. To act as liaison for the Division between the street officers, theCCOs, and other Department personnel, to see their requests arecoordinated to insure that the automated systems in place servethe needs and measure up to the expectations of all active usersfor functionality and easy use.

E. To investigate and identify which automated systems can bestmeet the law enforcement function, but maintain the requiredstandards and codes set forth to comply with open records,investigative and criminal procedures, making sure rules ofevidence, arrest, search and seizure, and the rights of theindividual are not violated.

F. Acts as liaison for the Green Bay Police Department’sCommunication Division to the Information Services Department.Works with the Information Services Department as appropriatein computer related matters.

IV. DUTIES AND RESPONSIBILITIES

A. Performs preventive maintenance and minor routine oremergency repairs, or acts as the Department liaison between thecity and its contractors for all equipment under his/her control.This equipment includes, but is not limited to, radios, computers,telephones, radar units, pagers, audio tape recorders, duplicatingequipment, building public address system, and vehicle fleetmaintenance, i.e. all radio and computer systems in the fleet.

B. Assists all divisions in the Department with research,development and implementation of any automated systems.

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C. Assists with the preparation of the annual budget for allequipment under his/her control. Makes recommendations to theadministration for new equipment and be able to work with othercity departments in drawing up bid specifications.

D. Recommends training for officers and civilian employees as itpertains to all facets of the Communications Division to cover lawupdates and police procedures for the Department’s computer,radio and telephone systems.

E. Monitors and assists in evaluating CCO job performance.

F. Monitors and advises the Division Commander when CCOs needto be recertified in order to comply with existing standards, i.e.EMD, CPR, TTY.

G. Assists in developing and updating all Division SOPs andguidelines for CCO’s operation in the 911 CommunicationCenter.

H. Acts as instructor during department training programs for newemployees, roll call and in-service training programs covering allareas of his/her responsibility.

I. Perform all other duties that may be assigned by his/hersupervisors.

J. Assumes the duties and responsibilities of the Director ofCommunications in his absence.

V. KNOWLEDGE, SKILLS, AND ABILITIES

A. To be acquainted with and recognize complaints of all violationsof ordinances of the City of Green Bay, and misdemeanors andfelonies against the persons and the State of Wisconsin and theUnited States.

B. To be completely familiar with the Rules and Regulations relativeto criminal procedures of arrest, search and seizure, and therights of individuals under investigation for any matter.

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C. To be familiar with allied agencies of the city, state, or federalgovernment, for proper referral of matters in all localjurisdictions of department responsibility.

D. To be familiar with technical aids and general use of such aids inapplication to investigate activities.

E. To be familiar with general investigative procedures, sources orinformation and proper method of reporting same and offollowing same through correct remedial steps, such as courts orcommissions basically assigned to handle these matters.

F. Knowledge of department main frame computer hardware andsoftware operations (beyond the end-user level) sufficient toprovide the ability to troubleshoot and resolve problems, systemfailures, etc. In depth knowledge of CAD system.

G. Knowledge of Department radio and telephone systems (beyondend-user level) sufficient to provide the ability to troubleshoot,resolve and/or correct problems of moderate difficulty.Knowledge of the role of the trunk radio system in majoremergency response including talk groups, etc. Knowledge ofthe theory and practice of radio transmission and reception; radiotransmitting and receiving equipment; radio installation,maintenance, testing and operations; and FederalCommunications Commission’s rules and regulations governingtransmitting and receiving equipment as it pertains to publicsafety usage.

H. Knowledge of personal computers, printers, modems, mobile dataterminals, and other police department electronics (beyond theend-user level) sufficient to troubleshoot, resolve and/or correctproblems of moderate difficulty.

I. Ability to work from blueprints, schematic diagrams, technicalmanuals, etc. Ability to work with parts, equipment, tools, etc.common to the electronic communication and computing fields.Ability to maintain accurate and complete files on personnel andequipment.

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VI. MINIMUM QUALIFICATIONS

A. Post-secondary education in computer science, electronics,broadcast communications, or related field highly desirable.

B. Be certified as a law enforcement officer by the Wisconsin LawEnforcement Training and Standard’s Board.

C. At least five years experience as a police officer and able toqualify through the Department promotional procedures.

D. Valid driver’s license and good driving record.

E. Sufficient oral communication skills to represent the division atbudget hearings, in public, and staff meetings, etc.

F. Sufficient written communication skills to maintain departmentinventories, staff study research projects, management progressreports, preventive maintenance schedules, and issuememorandums as directed.

G. Must possess or be able to obtain any training and/orcertifications required to perform the duties in this area ofspecialization.

VII. APPOINTMENT AND REMOVAL

A. Subject to the regular rules and contractual agreements of theGreen Bay Police Department as well as the laws of the State ofWisconsin.

7. The City at the time of Shaha’s retirement decided to not fill his vacantSpecialist II position and to instead replace it with a PC/Network Technician position. The jobdescription for the PC/Network Technician states:

I. IDENTIFICATION

Position/Title: PC/NETWORK TECHNICIANDept/Division: Information ServicesReports To: Information Services Director

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Supervises: NoneJob Summary: Under general supervision, provides technical support for

the City’s data communications network.

II. ESSENTIAL FUNCTIONS

Responsible for installation and setup of new personal computers, peripherals(printers, plotters, speakers, etc.), phone system equipment and networkequipment (hubs, routers, wiring, etc.). Repair and upgrade existing equipmentincluding personal computers, peripherals, network equipment, phones andrelated wiring, board and disk upgrades, and memory changes. Respond to andresolve problem calls, including Help Desk requests. Perform problemdetermination, coordination of service calls with vendors and transportation ofequipment. Install and configure operating systems and application software.Complete documentation necessary for administrative functions of thedepartment, including time reporting, problem logs, etc. Train City employeesin software and equipment use. Perform routine/preventative maintenance onPC’s and printers (scan disk, defrag, etc.) on a regularly scheduled basis.Perform fixed asset tracking. Related functions as assigned.

III. KNOWLEDGE, SKILLS AND ABILITIES

Considerable knowledge of PC and network technology. Knowledge ofcomputer-based telephone systems. Ability to work well with departmentpersonnel and customers. Ability to work independently and as a team member.Ability to identify and resolve PC and network support problems. Ability toeffectively communicate, both verbally and in writing.

May be required to demonstrate minimum competency by successfully passingapproved tests.

IV. MINIMUM EDUCATION AND EXPERIENCE REQUIRED

1. Associate degree in Microcomputers, Network Support,Computer Science or related field.

2. One to three years technical support-related experience.3. Valid driver’s license and good driving record.

A combination of equivalent experience and/or education may beconsidered.

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V. PHYSICAL REQUIREMENTS

Ability to perform the following activities:

Lifting up to 70 pounds.Carrying up to 50 pounds.Frequent standing, walking, sitting and crawling.Ability to focus for long periods of time on projects.Ability to use fine hand tools.

The above is not to be construed as an exhaustive statement of duties,responsibilities or requirements.

At the time of Shaha’s retirement, the City already had one employe in the PC/NetworkTechnician classification who is employed in the City’s Information Services Department whichis located in City Hall. The incumbent in that position has an Associate Degree in Electronicsand about 14.5 years of experience installing, setting up, maintaining, and repairing personalcomputers. That PC/Network Technician position was first proposed by Senior PersonnelAnalyst Katey Bouressa in a memorandum dated August 8, 1997, to the City’s Assistant HumanResources Director Kathryn Koehler which stated:

RE: Reclassification of Programmer/Analyst to PC/Network Technician

I. Request by Information Services Director, Tony Keuler to study thevacant Programme Programmer/Analyst position.

II. Research Completed.

A. Discussion with Information Services Director, Tony Keuler

B. Discussion with entire Information Services Department staff toreview workload and current staffing levels.

C. Discussion with Karin Green, Brown County Personnel Analyst

D. Review of Government Information Processing Association ofWisconsin, 1997 Survey results

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III. Discussion

In November, 1996, Information Services Director Tony Keuler, receivedauthorization to fill a Programmer/Analyst position vacant due to a resignation.Since that time, two recruitments have proven unsuccessful in finding aninterested and qualified candidate who could meet the department’s currentneeds. As a result, a study was initiated to review the entire department.

Currently, the Information Services Department table of organization includes:

1 Information Services Director4.7 Programmer/Analysts (4 full time and 1 part-time).5 Data Processing Clerk (part-time)

The work in the department has traditionally been divided into specialties bydepartment. For example, one Programmer/Analyst handles the accountspayable and receivable and general ledger, one handles payroll, Parking Utilityand Water Utility, one handles network functions, and one handles Police, Fireand Muncipal Court. The Data Processing Clerk is responsible for running avariety of mainframe jobs (invoicing, monthly reports, etc.) and performingbackup operations on all computer-based operations.

All employees in the department currently assist to some extent, with PCinstallation and upgrades, software upgrades and Help Desk activities. Thework is consuming anywhere from 15% to 75% of each staff member’s timesince the introduction of a client-server based network environment. This iscausing a backlog in programming/software development projects, and networkdebugging and improvements.

In 1992, the City owned approximately 20 personal computers. Today, theInformation Services Department services approximately 180 PC’s/WorkStations, 100 printers, 40 modems, and a number of multiplexers, bridges, linedrivers and hubs. With the increase in use of and complexity of computers,there is a direct correlation to the number of problems incurred by users. Theseproblems are based on human error, equipment failure and system quirks andhuman error.

City employees experiencing problems with their computer equipment either callthe Information Services Department directly or send a Help Desk servicerequest. As computers are now critical to the efficient and effective operations

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of all City departments, the majority of requests are considered urgent, not on a“when there is time” basis. Currently, Programmer/Analysts must put asidetheir regularly assigned projects to assist with Help Desk requests.

With the increase in peripheral equipment (printers, scanners, etc.) there is alsoan increase in breakdowns, repairs and general maintenance. The work also iscurrently performed by Programmer/Analysts (or contracted out whenconsidered more than routine). There is not adequate staff time or training toimplement a preventative maintenance program on computer equipment whichcould reduce these unexpected daily breakdowns.

One factor that has allowed the Information Services Department to at leastminimally meet the PC/Network support requirements, is the mature state of ourmainframe based systems. The demand for program writing and systemimprovements is significantly reduced when a program is installed and runningfor several years, as all City programs are.

However, during the next year, the following software programs will beinstalled at the City, requiring extensive staff time from each of the fourProgrammer/Analysts currently working:

* New World – the software which will create a county-wide dispatchingand Police Records system.

* Time and Attendance – The payroll program which will automate timeclock/time sheet data collection and entry.

* Finance upgrade – new software that will increase and improverecordkeeping capabilities in accounts payable and receivable, generalledger and budgeting.

* WAN – A Wide Area Network will be installed to include all outlyingCity departments on the existing network.

At the same time that this increase in Programmer/Analyst work is occurring,up to an additional 20 workstations plus required peripheral equipment will beneeded to be installed and maintained. At some point in time, Bay Beach, theWildlife Sanctuary, Park Shop and Mason Manor will also be connected to thenetwork.

As mentioned earlier, there have been two unsuccessful recruitments this yearalone. We have been trying to find a candidate qualified to be aProgrammer/Analyst with sufficient PC/Network support education andexperience in order to meet the increasing work demands in this area. The City,as well as the County, have been unsuccessful in 1997.

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Technological and workload changes seem to justify a change in the InformationServices Department table of organization. Attached is a job description for anew PC/Network Technician position which would replace the vacantProgrammer/Analyst position in the table of organization. Also attached is a jobdescription for Programmer/Analyst to clarify the differences in duties.

The PC/Network Technician would provide technical support for the City’s datacommunications network. This would include installing and setting up newPC’s and related peripheral equipment, repairing and upgrading equipment,responding to and resolving Help Desk requests, performingroutine/preventative maintenance and train employees in software and equipmentuse. This position would allow significantly more time forProgrammer/Analysts to perform actual software development and programmingduties.

The wage rate for this position will have to be negotiated but should besignificantly less than the $18.74 for a Programmer/Analyst.

IV. Recommendation

I recommend that the vacant Programmer/Analyst position be reclassifiedas a PC/Network Technician. I also recommend that the InformationServices Director be given approval to fill the PC/Network Technicianposition and any subsequent vacancies.

V. Fiscal Impact

As explained above, the wage rate is unknown at this time and anaccurate calculation is not possible. However, the wage rate is expectedto be lower than that of Programmer/Analyst resulting in a savings inboth wages and benefits.

8. The City ultimately agreed to create another P/C Network Technician positionfor the Police Department and to place it in the AFSCME-represented bargaining unitdescribed above in Finding of Fact 5. That PC/Network Techician position now earns about$15.80-$15.93 an hour and is referenced in the wage section of AFSCME’s contract with theCity. That Technician is part of the City’s Information Services Department which isresponsible for providing computer and other information services throughout the City’svarious departments, including the Police Department.

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9. After Shaha retired in March, 1998, City Assistant Human Resources DirectorKoehler by memorandum dated April 22, 1998, informed the City’s Personnel Committee:

RE: Request of Police Chief to eliminate position of Specialist II andcreate and fill the position of PC/Network Technician

On March 12, 1998, Katey Bouressa met with Specialist II Ron Shaha to discusshis position prior to his retirement on March 19, 1998.

Specific concerns had been raised in the past by Information ServicesDepartment personnel, Captain Mike Mason, and Fire Department personnel.Concerns included whether or not a sworn officer was necessary to fill theposition, and whether or not the position should remain a Police Departmentemployee.

In discussing a typical wok day in his current position, Specialist II Shahaoutlined the following percentages as to how his routine was structured:

* PC Support (90%) Rebuild and Maintain Equipment (30%) Respond to End User Questions and Concerns (50%) Load Software/Upgrade (10%)

* Radios (10%)

Captain Mike Mason, the individual responsible for supervising this position,has indicated that there are duties that should be added to the position that arenot included in the current job description. Those duties include:

* Monitoring and administration of the radio system including the additionand programming of new radios.

* Conducting recertification Time System training to all officers, performTime System program upgrades and keep staff abreast of Time Systemchanges and enhancements.

* Trouble shooting and routine administration of message switch andMobile Data Terminals.

* Assisting in identifying user needs for NewWorld software application.* Providing staff training on PC Software applications.* Participating as a member of MTUG (Mobile Technical User Group),

WISLEIN (Wisconsin Law Enforcement Intelligence Network, etc.

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In summary, the essential functions of the position would be installation and setup of new personal computers, peripherals, phone system equipment andnetwork equipment; responding to and resolving problem calls including helpdesk requests; training City employees in software and equipment use;performing routine and preventative maintenance on PC’s and printers and as anoverall job summary, is responsible for providing technical support for theCity’s data communications network including computers, radios, telephones,etc.

The Police Department is a 24 hour operation with approximately 60 concurrentusers engaged in a sensitive function. Technical support for this operation isclearly needed.

The position as defined, however, most closely matches our classification of aPC/Network Technician, rather than that of a sworn police officer, and myrecommendation would be to fill it at that level (a copy of that job description isattached). The next issue then becomes, which department is the position mostappropriately assigned to.

Argument could be made for assignment to the Information Services Departmentdue to the position’s classification and the fact that the entire City is linked byone network. Work performed on the network at any point can potentiallyimpact the entire network. Control by Information Services visa vis setting ofparameters for what the position can and cannot do is essential.

Argument can also be made to keep the position in the Police Department tableof organization. Much of the work that needs to be performed is peculiar to thePolice Department (Time System Radio System, Mobile Data Terminals,NewWorld, etc.) and it is critical that the position be physically located at thePolice Department. To have a position located full time in one department, butreporting to another department, especially one that is physically remote,presents supervisory problems, especially in regard to control and direction andthe like.

Considering all factors, it is appropriate to keep the position in the PoliceDepartment table of organization with the understanding that the InformationServices Department establishes the parameters of what function the position isallowed to perform.

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Filling the position as a PC/Network Technician has the following financialimpact:

Wage Hours/Year

Annual Wage Cost ofBenefits

Cost

SpecialistII

$23.70(1998 wage)

1965.6 $46,584 $8,633 (40%) $65,217

PC Tech. $15.34(1997 wage)

1950 $29,913 $8,973 (30%) $38,886

TotalEstimatedSavings

$26,331

(Note: 1998 wages are not available for the PC Network Technician as thatcontract has not been settled. Therefore, total estimated savings may be reducedby approximately $1000 to $2000)

RECOMMENDATION:

I recommend that the Police Department table of organization be amended bydeleting the position of Specialist II and adding the position of PC/NetworkTechnician and further, that authorization be given to fill the position.

10. The City has not yet filled the PC/Network Technician position assignedto the Police Department because of this pending unit clarification petition.

11. The City has discussed with the Union placing the PC/Network Technician inthe Union’s bargaining unit, at which time Union representatives told the City it would have totrain the most senior bargaining unit applicant who applied for the position, a training processKoehler testified without contradiction could take up to three years. City Human ResourcesDirector James M. Kalny by letter dated May 1, 1998, informed the Union’s attorney, ThomasJ. Parins:

. . .

Re: Green Bay Police Bargaining Unit – Specialist II/Computers

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Dear Mr. Parins:

I am in receipt of your letter dated April 27, 1998, and want to make certainthat there is no misunderstanding regarding the City of Green Bay’s intent inthis matter and our intended process at this point.

In our telephone conversation of April 23, 1998, we reviewed the content of theApril 22, 1998 letter and I explained to you that the City was intent onbeginning to fill this position and was looking for authorization from thePersonnel Committee to do so. You informed me that while you could notcommit the bargaining unit without conferring with them, you did not anticipatethat there would be a great deal of objection to removing this position from thebargaining unit. You went on to explain that the bargaining unit recognizes thatthere is a need for computer expertise in performing the duties to be provided bythe position described in the April 22, 1998 letter.

Accordingly, the City is proceeding to fill this position to meet this vital need assoon as possible. We do not feel, and I think you would agree, that this is thetype of position that we should leave vacant for a considerable period of time,nor is it the type of position that should be filled with an individual that is nottrained to perform all of the functions that will be required.

It is not the purpose of this letter to set forth the rationale for ourrecommendation to the Personnel Committee nor any arguments in support of it.It is only to let you know that we will be acting on the request, as presented, sothat if you have any response to us, you can formulate it and get it to us in amanner that you would deem timely.

If you have any questions concerning this correspondence, or the City’s intent orprocedure regarding this matter, please contact me at 448-4070.

. . .

12. Attorney Parins, by letter dated May 5, 1998, informed Kalny:

. . .

Dear Mr. Kalny:I read with some surprise your letter of May 1, 1998. You apparently intend todelete a position from our Bargaining Unit without first collectively bargaining.

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This kind of action is in direct violation with Section 1.03 of the labor contract.The City has expressly agreed that it would not take this kind of action withoutfirst collectively bargaining.

This is to advise that the Bargaining Unit would view a unilateral action of thekind anticipated to be in direct confrontation of its legal and contractual rights tobargain. The Bargaining Unit would deem this both as a refusal to bargain anda violation of the labor contract.

I am also personally taken aback in that you would take my offhand commentsregarding this matter and attempt to construe them as agreement to going aheadwith the change. I made it extremely clear to you in our telephone conversationof April 23, 1998, that not only did I have no authority to speak for theBargaining Unit, I could not predict what their position might be. Mycomments to you were strictly to the effect that I know that there had beencomments in the past regarding lack of computer expertise. I also made it veryclear that my comments were nonspecific and did not relate to any particularposition.

In our telephone conversation, I was under the impression that the City wasmerely transmitting notice and information as a prelude to collective bargaining.It was fully expected that collective bargaining would take place regarding thismatter. In fact, I was very clear in explaining that I would appreciatedocumentation indicating what specific position you were talking about, andwhat changes you contemplated. I stated that I would pass this information onto the Bargaining Committee immediately (which I have), and the BargainingCommittee would determine its bargaining stance in this matter.

As to the statements in your letter to the effect that there is a “vital” need for thechange, we could not disagree more. If there is any deficiencies regarding thelack of computer expertise in the Specialist II position in issue, it is a situationwhich has been in existence for a number of years, and indeed was in existenceat the time that the present labor contract was negotiated and implemented.There has been no occurrence or occasion that would make any change at thisparticular moment in time “vital” to the operations of the department. This isespecially true as to taking away all of the duties of a member of our unit. Ifthere is any dire need for computer expertise, the City possesses this expertise tolend to its police department pending collective bargaining.

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In short, there is no emergency situation which would in any way temper yourfirm legal and contractual duties to the Bargaining Unit.

. . .

13. There are significant differences between the disputed PC/Network Technicianposition slotted for the Police Department and the Specialist II position occupied by Shaha.The occupant in the former position does not need to be certified by the WisconsinEnforcement Board; he/she does not need any prior experience as a police officer; he/she doesnot need the power of arrest; and he/she does not need to perform any supervisoryresponsibilities. In addition, the occupant of the P/C Network Technician position mustpossess far greater computer skills than the Specialist II and he/she must be able to rebuild andmaintain equipment; load software; configure software; upgrade machines; respond to end userquestions and concerns; program radios; and train others in the use of personal computers.He/she must also be able to operate a new dispatch system, an AS/400 mainframe computersystem, and a Wide-Area Network System.

14. The PC/Network Technician assigned to the Police Department is scheduled towork 8:00 a.m. – 4:30 p.m., for a total of 37 ½ hours a week, Monday through Friday, andhe/she will share an office with a Computer Analyst who is in the AFSCME bargaining unit.A Communications Assistant, who is in the AFSCME bargaining unit, will work next door. Ifthe PC/Network Technician is temporarily absent, he/she will be replaced by the otherPC/Network Technician who is in the AFSCME bargaining unit. The disputed PC/NetworkTechnician would report to Communications Assistant Mike Mason who is a Captain in thePolice Department and who supervises both law enforcement employes and civilian employes.

15. AFSCME already represents a Communications Assistant, a ProgrammerAnalyst, and numerous custodians and mechanics who work in the Police Department.AFSCME also represents a total of six technical positions in various City departments: threeProgrammer/Analysts, a PC/Network Technician, a Data Entry Clerk, and a CommunicationsAssistant.

Based on the above and foregoing Findings of Fact, the Commission makes and issuesthe following

CONCLUSIONS OF LAW

1. Because the PC/Network Technician is not required to have the power of arrest,inclusion in the sworn employe bargaining unit represented by the Union is not appropriatewithin the meaning of Sec. 111.70(4)(d)2.a., Stats.

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2. Because the PC/Network Technician has a substantial community of interestwith the bargaining unit employes represented by AFSCME, inclusion in the AFSCMEbargaining unit is appropriate within the meaning of Sec. 111.70(4)(d)2.a., Stats.

Based upon the above and foregoing Findings of Fact and Conclusions of Law, theCommission makes and issues the following

ORDER CLARIFYING BARGAINING UNIT

The AFSCME bargaining unit described in Finding of Fact 5 is hereby clarified toinclude the position of PC/Network Technician that is to be assigned to the Police Department.

Given under our hands and seal at Madison, Wisconsin this 7th day of September, 1999.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

James R. Meier /s/James R. Meier, Chairperson

A. Henry Hempe /s/A. Henry Hempe, Commissioner

Paul A. Hahn /s/Paul A. Hahn, Commissioner

Dec. No. 29714

CITY OF GREEN BAY (POLICE)

MEMORANDUM ACCOMPANYING FINDINGS OF FACT,CONCLUSIONS OF LAW AND ORDER CLARIFYING BARGAINING UNIT

POSITIONS OF THE PARTIES

The Union asserts that the disputed PC/Network Technician slated for the PoliceDepartment is no different from the former Specialist II position vacated by Officer Shaha andthat it thus “meets all of the requirements for inclusion. . .” in its bargaining unit. It alsocontends there is no “basis or reason for the WERC to take any action in regards to the PCTechnician position” because it has not yet been filled; that “Unit clarification proceedings areinappropriate to seek a ruling on whether ‘unit work’ or ‘unit position’ should be removedfrom a collective bargaining unit”; and that the Commission should address certain“Prehearing Matters” relating to the Hearing Examiner’s comments to Attorney Parins.

The Union adds that unit clarification proceedings are an “inappropriate” means todetermine “duty to bargain issues which are already at issue in a pending prohibited practiceproceeding”; that a municipal employer’s right to unilaterally create or eliminate positions doesnot negate its bargaining obligations; that an employer’s right to “establish job descriptions orminimum qualifications is not at issue in this case”; that a qualified member of its bargainingunit “continues to be the best candidate to fill the position in issue”; that its contract with theCity precludes the City from “unilaterally removing the Specialist II duties from the bargainingunit. . .”; and that there exists “no legitimate technical PC technician position for this unitclarification proceedings to consider”.

The City, in turn, maintains that it has the right to establish the qualifications of “thejob it needed and to delete a position from the police table of organization because it was nolonger required”; that the new PC/Network Technician position does not fall within “the scopeor contemplation of the police bargaining unit contract”; that said position “has a virtuallyidentical community of interest with the AFSCME PC/Network Technician and otherAFSCME police department civilians”; and that its decision here “is a sound exercise inmanagerial discretion.”

The City also asserts there is no merit to the Union’s claim that the PC/NetworkTechnician will perform the same duties as the former Specialist II; that “abundant evidence”supports its decision to place the PC/Network Technician position in the AFSCME bargainingunit; that unit clarification proceedings are “clearly appropriate” to resolve these kinds ofdisputes and that the Union waived its right to object to its unit clarification petition; and thatthe Union’s “assertion in the ‘Prehearing Matters’ section of its brief is wholly inappropriate.”

Dec. No. 29714

DISCUSSION

Pursuant to the Commission’s long-standing policy, we find that the P/C NetworkTechnician position cannot be placed in the sworn Union bargaining unit described above inFinding of Fact 4 because the incumbent in said position will not be required to have the powerto arrest. See for example MARATHON COUNTY, DEC. NO. 21815-A (WERC, 9/94), whereinwe ruled:

It is well settled that the Commission rejects any co-mingling of positions withand without the power of arrest in the same bargaining unit.

Id., at 16.

We are further satisfied that the PC/Network Technician shares a substantial communityof interest with the employes represented by AFSCME. He/she will share an office with aComputer Analyst who is in the AFSCME bargaining unit and who performs similar computer-related work and he/she will work next door to a Communications Assistant who also is in theAFSCME bargaining unit, thereby joining the roughly 30 or so other civilian employes of theAFSCME bargaining unit who work in the Police Department. Moreover, the PC/NetworkTechnician will work a standard Monday-Friday work week with a fixed 8:00 a.m. – 4:30p.m. shift, unlike many members of the Union’s bargaining unit who work various shifts,including nights, weekends and holidays. Most importantly, the disputed position hassubstantially the same duties and skills as the other PC/Network Technician who works in theInformation Services Department and who is already in AFSCME’s bargaining unit.

Accordingly, because the P/C Network Technician slated for the Police Departmentshares a substantial community of interest with the employes represented by AFSCME; becausewe will not include sworn and non-sworn positions in the same unit; and because even therecognition clause in the Union’s own contract with the City limits the Union’s jurisdiction tothose Police Department employes who have the “powers of arrest”, we conclude that saidposition should be placed in AFSCME’s bargaining unit.

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We find without merit the Union’s claim that the Commission should not rule on theCity’s petition because of the holdings in SHAWANO COUNTY (MAPLE LANE HEALTH CARECENTER), DEC. NO. 22382 (WERC, 2/85); CITY OF BROOKFIELD, DEC. NO. 21808 (WERC,6/84); MILWAUKEE BOARD OF SCHOOL DIRECTORS, DEC. NO. 20093-A (WERC, 8/83);TOMAHAWK PUBLIC SCHOOLS, DEC. NO. 12483-A (5/74).

In SHAWANO, SUPRA, the Commission ruled that the employer could not attack thevalidity of a union’s certification – which it had tacitly agreed to earlier – by belatedly trying toinclude licensed practical nurses within a bargaining unit that consisted of registered nurses. TheCommission held that it: “does not consider the unit clarification procedure a proper means ofsecuring a combination of two existing units into one confirmed unit.” Id., at 5. Our holdingthere is inapposite here since there is no attempt in this proceeding to combine two units intoone.

CITY OF BROOKFIELD, SUPRA, and MILWAUKEE BOARD OF SCHOOL DIRECTORS, SUPRA,involve duty to bargain issues. The duty to bargain issues between the Union and the City havebeen separately litigated and decided in CITY OF GREEN BAY, DEC. NO. 29469-A (Nielsen, 7/99),AFF’D. BY OPERATION OF LAW, DEC. NO. 29469-B (WERC, 8/99) in a manner which is consistentwith a resolution of the merits of this case.

The Union cites TOMAHAWK, SUPRA, for the proposition that it is inappropriate to use aunit clarification petition to exclude a position from a unit unless continued exclusion is contraryto the Municipal Employment Relations Act. As reflected in our Findings, the P/C NetworkTechnician is substantially different from the former Specialist II position. Thus, we do notaccept the factual premise of this Union argument. Further, as noted earlier herein, we have heldthat it is inappropriate as a matter of law to mingle sworn and non-sworn employes in the sameunit. Thus, we reject this Union argument as well.

The Union also cites EAU CLAIRE COUNTY, DEC. NO. 29305 (WERC, 2/98), and ROCKCOUNTY, DEC. NO. 28494-A (WERC, 1/96), in support of its additional claim that the City isprecluded from removing bargaining unit work without first bargaining over that removal. Aspreviously noted, the duty to bargain issues have been litigated and decided in CITY OF GREENBAY, DEC. NOS. 29469-A, B.

Lastly, we turn to the Union’s concerns regarding the Examiner’s conduct vis-a-visAttorney Parins. In response, based on our review of the record, we are satisfied all partiesreceived a full and fair opportunity to present evidence and argument. We further point out

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that we are the decision makers in this case and we base our decision on the evidence andargument produced by that opportunity.

Dated at Madison, Wisconsin this 7th day of September, 1999.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

James R. Meier /s/James R. Meier, Chairperson

A. Henry Hempe /s/B. Henry Hempe, Commissioner

Paul A. Hahn /s/Paul A. Hahn, Commissioner

gjc29714.D

decision no. 29714

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